Appeal from the 23rd Judicial District Court Parish of
Assumption, State of Louisiana Trial Court No. 34316 The
Honorable Thomas J. Kliebert Jr., Judge Presiding
Leopold Z. Sher James M. Garner Peter L. Hilbert Jr. Neal J.
Kling Jeffrey D. Kessler New Orleans, LA and Robert Ryland
Percy III Gonzales, LA and Eric J. Mayer Houston, TX
Attorneys for Defendant/Appellant Texas Brine Company, LLC
Christoffer C. Friend Susan R. Laporte Meghan E. Smith New
Orleans, LA and Brad D. Brian (Pro Hac Vice) Bethany W.
Kristovich (Pro Hac Vice) Los Angeles, CA Attorneys for
Defendant/Appellee Occidental Chemical Corporation
BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.
suit arises from the sinkhole that developed in Assumption
Parish in August 2012. Texas Brine Company, LLC, appeals a
November 27, 2016 judgment denying its request for a
preliminary injunction to enjoin arbitration proceedings.
Finding the courts lack authority to decide the issues urged
as to the injunction, we affirm.
AND PROCEDURAL HISTORY
being named a defendant in this suit, Texas Brine filed
incidental demands asserting tort and contract claims against
various parties, including Occidental Chemical Corporation
("Oxy") and Vulcan Materials Company. Texas Brine
alleged that in 1975, Oxy, as owner of the land over the
Napoleonville Salt Dome, leased to Texas Brine the right to
produce salt from the land. In 1976, Texas Brine transferred
its interest in the salt lease to Vulcan,  but remained
operator of the brine production wells and related facilities
pursuant to an Operating and Supply Agreement dated October
29, 1975 ("Operating Agreement"). The Operating
Agreement was amended and restated in its entirety by Texas
Brine and Vulcan on January 1, 2000 ("Amended Operating
Agreement"). Oxy then acquired Vulcan's assets and
assumed its obligations under the salt lease and Amended
Amended Operating Agreement contained an arbitration clause
in Section 12.10. Pursuant thereto, Texas Brine and Oxy have
been engaged in arbitration proceedings, while simultaneously
litigating claims in court. According to a scheduling order
issued by the trial court, contract claims are being
arbitrated, while tort claims are proceeding in court.
Brine now claims Vulcan fraudulently induced it to enter the
Amended Operating Agreement and the arbitration agreement
contained therein by withholding critical information. Texas
Brine asserts the fraudulent inducement vitiated its consent,
making both the Amended Operating Agreement and the
arbitration clause in Section 12.10, void ab initio.
Arguing no enforceable arbitration clause exists, Texas Brine
moved for a preliminary injunction to halt the arbitration
proceedings until the court decides its fraudulent inducement
claims.Oxy countered that Texas Brine's
fraudulent inducement claim could not be resolved in the
courts and must be raised in the arbitration proceeding,
citing this court's decision in Jasper Contractors,
Inc. v. E-Claim.com, LLC, 11-0978 (La.App. 1 Cir.
5/4/12), 94 So.3d 123.
trial court held the arbitrators, not the court, must decide
Texas Brine's challenge to the contract as a whole.
However, drawing a distinction recognized by the Supreme
Court in Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), the
trial court found any claim directed specifically to the
validity of the arbitration clause should be decided by the
court. After considering the evidence presented at the
hearing, the trial court found Texas Brine failed to prove
its consent to the arbitration clause itself was vitiated by
fraud. Consequently, the trial court signed a judgment on
November 27, 2016, denying Texas Brine's motion for
preliminary injunction and refusing to enjoin the arbitration
Brine now appeals, arguing the trial court erred in its
determination that arbitration rather than court is the
proper forum for resolving the question of whether an
enforceable agreement to arbitrate exists between the
parties. (Brief p.3) It argues only a Louisiana
court can define the requirements for a valid and binding
contract under Louisiana law, and the courts must make the
threshold determination as to the validity of the underlying
contract giving rise to the arbitration proceeding. (Brief
pp. 15-17) Texas Brine additionally argues it did, in fact,
make a fraudulent inducement claim directed specifically to
the arbitration provision, and the trial court erred in
finding the evidence insufficient as to that issue.
is a matter of contract. AT&T Mobility LLC v.
Concepcion,563 U.S. 333, 339, 131 S.Ct. 1740, 1745, 179
L.Ed.2d 742 (2011). Therefore, we begin our analysis with the
language of the contract. See Buckeye, 546 U.S. at